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More Is Not Always Better: Rethinking Copyright Length

May 2, 2014 ,

Recently we’ve seen a revived discussion surrounding copyright terms and the public domain, including Derek Khanna’s recent paper, Stewart Baker’s discussion of conservatives and copyright law, and Tim Cushing’s report on copyright and public domain. For Public Knowledge, getting the length of copyright protection right is a key part of getting copyright as a whole right. If the term is too short, people who would have created new works may decide not to. If the term is too long, a law that’s meant to put more works in our cultural discourse instead risks locking them away from public enjoyment and re-use.

Right now, copyright terms are extraordinarily long: the life of the author plus 70 years, or 95 years if the creator was an employee. A term this long doesn’t encourage new works any more than, say a term of life-plus-50 would. How many authors would actually refuse to create a new work simply because their great-great-grandchildren could own the copyright but their great-great-great-grandchildren may not?

As most reading the PK blog probably know, Congress has the power to create copyright and patent laws to “promote the Progress of Science and useful Arts” by giving authors excusive rights over their works for “limited Times.” In the time of the founding fathers, “limited Times” meant 14 years, plus an optional 14-year renewal. Since then, several laws bumped the length of copyright up to its current extraordinary length.

Having copyright terms this long not only makes it more difficult and more expensive for everyone to access works that were made almost a century ago, it stymies the creation of new works that build on the works that came before. Multiple experts have looked at this issue and concluded that copyright terms this long create deadweight loss without incentivizing new works to make up for it.

As a result, we see recurring proposals from various stakeholders asking for shorter terms, or at least for Congress to commission a comprehensive study that examines exactly how long copyright should be to balance our interests in creating new works, experiencing the works in our culture, and reworking old works in creative new ways.  Even the Register of Copyrights has offered the idea of decreasing the length of copyright to life plus 50 years, plus an additional 20 years if the copyright owner renews their right.

It’s also worth noting that trying to arrive at the right answer on copyright term is not simply an issue of being “for” or “against” copyright. It is absolutely possible to say—as PK does—that copyright is a useful regulatory regime that should exist and to say we should strike the right balance in limiting its scope and including exceptions to make sure copyright as a whole actually encourages the creation and use of creative works. Just like taxes, police powers, and vitamin D, to say that copyright is a useful thing is not to say that more is always better.

This is why Public Knowledge has proposed that Congress shorten the length of copyright to life of the author plus 50 years to enrich the public domain while still complying with the U.S.’s international treaty obligations. While other studies indicate an even shorter term is all that is needed to encourage people to create new works, this would be a good first step toward rethinking the more-is-always-better mantra that let our copyright terms get out of control in the first place.

Image credit: Flickr user opensourceway